Concerns raised by witchcraft accusations and witch-hunts in South Africa (2013)

Stakeholder Submission prepared by the South African Pagan Rights Alliance for the Commission for the Promotion and Protection of Cultural, Religious and Linguistic Communities.

Accusations of witchcraft and Human Rights

Every citizen of the Republic is constitutionally and legally entitled to:1. Equality 2. Human dignity 3. Life 4. Freedom and security 5. Freedom from slavery, servitude and forced labour 6. Freedom of movement and residence 7. Freedom of trade, occupation and profession 8. Freedom to own a home and maintain property 9. The right to access to justice10 The right to health care, food, water and social security11. The right to just administrative action12. The right to access to courts13. The right not to be unfairly arrested, detained and accused14. The right to citizenship.

The vast majority of victims of accusation of witchcraft, both deceased and still living, in South Africa are essentially being denied their legal right to all of these above-mentioned constitutional rights. Accusations of witchcraft are not condoned under the constitutional rights to freedom of religion, belief and opinion, or expression, as incitement to propaganda for war; incitement of imminent violence; or advocacy of hatred based on race, ethnicity, gender or religion, that constitutes incitement to cause harm, is not protected under South African law. Accusations of witchcraft and resulting witch-hunts constitute a series of clearly identified crimes under both international and national law.

In almost all cases of accusation of witchcraft, the accused will:

a. not be offered access to legal defense against the accusations,b. not be considered innocent until proven guilty in a court of law,c. be driven from their communities,d. lose their homes as a result of arson,e. be forcibly separated from their families, loved ones and friends,f. be placed in custody by the South African Police Services, ostensibly for their own safety, spending at least one night in a prison cell to avoid being attacked by members of their own community,g. may never return to their homes and communities of birth, andh. be forced into unwilling exile in unofficial and unacknowledged refugee camps.

By being denied access to counseling and restorative justice, the living victims of accusation – refugees of incitement, hatred and violence – are currently not afforded any assistance or protection by the South African government.

Where cases of accusation of witchcraft are heard by Traditional Courts in South Africa, the victims of accusation are not afforded any legal defense. Traditional Courts rely on culturally biased beliefs and processes to try cases involving witchcraft. Traditional Courts may rely solely on the testimony of the accuser, corroborated only by the additional testimony of a traditional diviner, in judging whether or not an accusation of witchcraft is true or not. Judgements made by traditional courts are not readily accessible to review or appeal, and those victims of accusation found guilty on the basis of allegation and divination, are not afforded access to any appeal process within such courts.

Whilst victims of accusation found guilty by such courts may not be sentenced to death, imposed fines may constitute onerous and unfair burdens on those accused without any actual verifiable evidence of criminal activity being produced or proven against them. Since traditional courts still remain far more accessible for both accusers and victims of accusation in rural areas, most cases of accusation will be heard outside of the ambit of both acceptable legal jurisprudence and constitutionally protected human rights.

Response by members of the South African Police Services to accusations of witchcraft and mob attacks on victims of accusation, fails to protect the dignity of the accused. Victims of accusation are seldom if ever given access to counseling either during or after enforced incarceration following incidences of accusation. No coordinated programme of action to deal with spontaneous and random accusations and resulting attacks by vigilante groups or individuals against those accused of witchcraft currently exists within SAPS operations.

Members of the SAPS must be trained to manage witchcraft accusations and witch-hunts in a way that affirms the dignity of those accused. Capacity must be created by the State to include victim support units in every police station across the country, especially where incidences of accusations of witchcraft are high, in order to ensure that the SAPS is able to facilitate immediate access to justice and facilitate timely trauma counseling to victims of accusation.

Without access to a coordinated and accurate national database of incidences of accusations of witchcraft and witch-hunts, the SAPS and the State will remain unable to measure or take accountable responsibility for properly and humanely managing such human rights offences in the future.

Since the practice of witchcraft remains criminalized under Act 3 of 1957 (Witchcraft Suppression Act), the burden of guilt is still automatically placed on the shoulders of the victims of accusation, irrespective of whether or not actual criminal action has or can be proven against the accused. Even if Act 3. of 1957 is repealed entirely (as has been extensively motivated by this Alliance and its partners in its formal request to the South African Law Reform Commission for the repeal of Act. 3 in 2007) in order to give effect to the right of citizens to freedom of belief and religion (including the right to practice divinations and Witchcraft), the making of accusations of witchcraft must remain a criminal offence.

Whilst both the belief in and practice of Witchcraft may no longer be considered a crime (given the constitutional protection of the right to freedom of belief and religion), no person may use their belief or religion to advocate or incite propaganda for war; imminent violence; or advocacy of hatred that constitutes incitement to cause harm.

Refugees of witchcraft accusation arguably constitute the most marginalized and disenfranchised citizens in South Africa. An accusation of witchcraft carries with it an unchallenged and culturally imposed obligation of shame against the victim of accusation. Suspicion of guilt by those around a victim of accusation, reinforces both socially acceptable stereotypical beliefs about witchcraft and how it operates even (allegedly) on individuals who are not consciously aware of its controlling influences, and the resulting sense of shame and guilt experienced by the victim of accusation for having brought such tragic misfortune (the accusation) upon his or her own family. More often than not, where accusations of witchcraft have been leveled at only one member of a family, the entire family has lost their home to fire, family members and extended family members to vigilante assault, or entire families have been murdered.

Where the accused have survived, the police, community members, traditional leaders (including Traditional Court authorities) and traditional healers have been known to forcibly evict whole families related to the victim, from their homes and communities of birth, from their livelihoods, possessions and land. The victims and their families receive no compensation where access to justice is not even considered.

The Limpopo Province currently houses several, both formal and informal, refugee villages whose inhabitants (individuals and families) are almost entirely composed of victims of accusation of witchcraft and those who were forcibly relocated with them. Given that the Limpopo provincial government (including the health and social development department) has been under partial administration as a result of financial mismanagement since December 2011, and that most people living in these “witch-camps” remain unemployed, urgent attention must be focused at both Provincial and National government level to providing adequate services and access to justice to these victims of societal prejudice.

Refugees of witchcraft accusation cannot remain an unspoken secret or unchallenged opportunity. Victims of accusation deserve true restorative justice. They deserve to live with dignity, without shame, guilt or fear.